Evidence Destroyed, Innocence Lost: The Preservation of Biological Evidence under Innocence Protection Statutes
![handle is hein.journals/amcrimlr42 and id is 1247 raw text is: EVIDENCE DESTROYED, INNOCENCE LOST:
THE PRESERVATION OF BIOLOGICAL EVIDENCE UNDER
INNOCENCE PROTECTION STATUTES
Cynthia E. Jones*
In 1997, Texas governor George W. Bush issued a pardon to Kevin Byrd, a man
convicted of sexually assaulting a pregnant woman while her two-year old
daughter lay asleep beside her.' As part of the original criminal investigation, a
medical examination was performed on the victim and bodily fluids from the rapist
were collected for forensic analysis in a rape kit. At the time of Mr. Byrd's trial
in 1985, DNA technology was not yet available for forensic analysis of biological
evidence.2 In 1997, however, a comparison of Mr. Byrd's DNA with the bodily
fluid in the rape kit established that Mr. Byrd was not the rapist.3 After serving
twelve years in prison, Mr. Byrd finally was exonerated because of the scientific
advancements in DNA technology and the fact that, by pure luck, the sample of
biological material collected in the rape kit had been preserved at the Harris
County Clerk's Office in Houston, Texas for over a decade.4
After the DNA tests excluded Kevin Byrd as the perpetrator, the prosecution and
the police were convinced that Mr. Byrd was innocent.5 When Governor Bush
issued the pardon, he predicted that Mr. Byrd's case would be the first of many in
Texas to use the new DNA technology to re-examine old cases.6 The same week of
Mr. Byrd's pardon, however, the evidence custodians at the Harris County Clerk's
* Professor Cynthia Ellen Jones is an Assistant Professor of Law at the American University, Washington
College of Law. Professor Jones is a former staff attorney and the former Executive Director of the Public
Defender Service for the District of Columbia. I would like to dedicate this article to the memory of my wonderful
mother, Ernestine C. Jones, who continues to inspire me. Also, it takes a village to create a law review article,
and I would like to thank all of my village people: a very special thanks to my colleague, my mentor, and very
dear friend, Professor Angela J. Davis, who continually motivated me in this creation: Professor Tamar Meekins,
for her incredible friendship and support; my dedicated research assistants who gave me invaluable assistance on
this journey: Addy Schmidt, Rolaine Bancroft, Joseph Caleb, Nana Amoako, Keir Bancroft, Holly Daee, Natalia
Wilson and Michael Collins, Frank Pigott. I would also like to thank my many colleagues at the Washington
College of Law for their on-going encouragement and support, especially Dean Claudio Grossman, Associate
Dean Andy Pike, and Professors Ira Robbins, Bob Dinerstein, Jamin Raskin and Binny Miller.
I. Claudia Kolker, DNA Tests Can Free Wrongly Convicted ifEvidence Survives; Sample That Helped Kevin
Byrd Almost Thrown Out of Warehouse, Hous. CHRON., Oct. 13, 1997, at 25A.
2. See Lauren Kern. Innocence Lost? Despite its Increasing Importance, DNA Evidence Routinely Gets
Destroyed Here, HOUST. PRESS, Nov. 30, 2000 (noting that the widespread use of DNA evidence in rape and
murder cases began in 1996); see also infra note 18.
3. Proof Clearing Man Almost Tossed Out, AUSTIN AM.-STATESMAN, Oct. 14, 1997, at B3 [hereinafter Proof
Almost Tossed Out].
4. Kolker, supra note 1, at 25A.
5. Jim Dwyer, W Soft on Napping Lawyers, DNA, DAILY NEWS (New York), Mar. 5, 2000, at 8.
6. Id.
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Evidence Destroyed, Innocence Lost: The Preservation of Biological Evidence under Innocence Protection Statutes
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